Non-compete clauses (or ‘covenants not to compete’, CNCs) in contracts restrict parties from working or doing business in particular industries or geographic markets for some period of time after the termination of the contract. These clauses seem to be getting more common (even for fast food restaurants). There are some economic justifications for CNCs, particularly if an employee has access to proprietary information that is central to the employee’s role or if things like client lists or industry contacts are key strategic assets. CNCs can help align the incentives of both the employee and the employer–since having those protections may increase information sharing within the firm. My colleague, Harvey James, Jr., has a nice piece (ungated version here) on employment contracts that discusses some of these incentive issues.

Ultimately, however, CNCs are subject to State law and State enforcement–and not all States enforce CNCs with equal rigor. So what are the effects of State enforcement (and thereby, of CNCs themselves)?

A recent study in Human Resource Management by Smriti Anand, Iftekhar Hasan, Priyanka Sharma and Haizhi Wang explores the effect of State enforceability of CNCs on firm productivity. The results seem rather interesting. The abstract reads:

Noncompete agreements (also known as covenants not to compete [CNCs]) are frequently used by many businesses in an attempt to maintain their competitive advantage by safeguarding their human capital and the associated business secrets. Although the choice of whether to include CNCs in employment contracts is made by firms, the real extent of their restrictiveness is determined by the state laws. In this article, we explore the effect of state-level CNC enforceability on firm productivity. We assert that an increase in state level CNC enforceability is detrimental to firm productivity, and this relationship becomes stronger as comparable job opportunities become more concentrated in a firm’s home state. On the other hand, this negative relationship is weakened as employee compensation tends to become more long-term oriented. Results based on hierarchical linear modeling analysis of 21,134 firm-year observations for 3,027 unique firms supported all three hypotheses.

“We’re from the government, and we’re here to help.” Yeah, you know that punchline, right?

I saw a report from NPR that FCC Chairman Tom Wheeler had decided to do just that in the dispute between Dish Network and Sinclair Broadcasting. As reported in the Wall Street Journal yesterday, Dish blacked out some 150 local stations owned or operated by Sinclair as a result of their ongoing distribution contract renegotiation dispute. The blackout affects some 5 million consumers in 79 markets.

Enter Chairman Wheeler to the rescue. Per the NPR article,Wheeler stated “We will not stand idly by while millions of consumers in 79 markets across the country are being denied access to local programming.”

Just one problem: Consumers are not being denied access to local stations–particularly to local news, weather and information on their local NBC, ABC, CBS and Fox affiliates. These affiliates are required–by the FCC–to provide free digital broadcasts, meaning consumers are perfectly able to access these stations for relatively modest investments in a digital antenna for their television. Moreover, in most markets Dish is not the sole distributor of paid-access television, meaning consumers also have the option of switching to a different television service provider. Indeed, as reported by both NPR and the WSJ, Dish is already hemorrhaging subscribers in large part due to service interruptions that have come to characterize Dish’s negotiating tactics with local station owners. And no doubt Dish has taken that into account in their negotiation strategy with Sinclair.

Where the FCC should act is in clarifying its rules regarding negotiation rights and station ownership. Two weeks before the blackout, Dish filed a complaint with the FCC regarding Sinclair’s negotiating tactics–which revolve in part around whether Sinclair was the property rights to negotiate on behalf of several stations it operates, but does not own. The FCC issued a rule forbidding such negotiations, but Sinclair alleges their operating agreements were grandfathered in. If the FCC were more clear in its rules and interpretations, perhaps the contracting dispute would have resolved itself already without the need for Chairman Wheeler to mount his white horse and ride to the rescue.

An interesting paper by Colleen Honigsberg, Sharon Katz (both at Columbia) and Gil Sadka (Univ. of Texas at Dallas) in the November 2014 issue of the Journal of Law & Economics (available here) looks at differences in debt contract terms based on the state’s contract law which governs the debt contract. A number of papers have studied factors affecting the use of various types of covenants and contract terms for debt agreements, but none previously have accounted for variation in state contract laws. Below is the abstract:

This paper examines the relationship between debt contracts and state contract law. We first develop an index to evaluate whether each state’s law is favorable or unfavorable to lenders. We then analyze how the contract terms, the frequency of covenant violations, and the repercussions of covenant violations vary across states. We find that cash collateral is most likely to be used when the contract is governed by law that is favorable to debtors and that out-of-state borrowers who use favorable law pay higher yield spreads. In addition, when the law is favorable to lenders, there are significantly fewer covenant violations, and the repercussions of covenant violations—measured as changes in the borrower’s investment policy—are more severe. We also compare the characteristics of relevant parties across states, and the results provide support for the theory that there is a market for contracts similar to the market for incorporations.

Roger Blair and Francine Lafontaine have a new paper out on “Formula Pricing and Profit Sharing in Inter-Firm Contracts” (here). They explore the use of profit-sharing contracts for vertical relationships, particularly the case of successive monopoly or the double-marginalization problem. Naturally, their focus is on franchise relations. The abstract follows:

Ronald Coase viewed transaction cost minimization as a central goal of contracting and organizational decisions. We discuss how a solution to the traditional successive monopoly problem that has not been discussed in the literature can economize on such costs. Specifically, we show that when we allow for profit sharing between upstream and downstream firms, a simple formula pricing contract can be used to generate the vertically integrated level of profits. This simple contract, empirically, would take the form of the standard linear wholesale price contracts that are ubiquitous in vertical contexts, even those where we might expect successive monopoly to be an issue. We discuss the advantages of the proposed contract from a transaction cost perspective. We also discuss some of its limitations, in particular the likelihood of misrepresentation of costs, and ways in which such misrepresentation might be addressed in the contract.

That’s the title of a new working paper with one of my former students, Michelle (Mullins) Santiago. You can access the full paper here. The abstract follows:

The wine industry in the United States has grown tremendously over the past few decades, from fewer than 1,000 wineries in 1980 to upwards of 7,700 today. The growth has occurred over a period that has seen substantial changes in the structure of the wine industry, the modes of distribution available to wineries, and the regulations governing them, perhaps most notably the advent of direct-to-consumer shipping of wine across state boundaries. Most economic research, however, has focused on supply relations between wineries and wine grape growers rather than between wineries and their downstream markets. In this paper we examine wineries’ contracting behavior with downstream distributors and the effects of industry structure, winery organizational structure, and state laws regarding direct shipment and distribution franchise laws.

A student in my contracts course asked today about Dish’s hostile bid for Sprint and the implication for Sprint’s existing deal with Softbank. Great question! If only Dish had held off on their bid another couple weeks until when we are scheduled to talk about termination fees in M&A deals.

Turns out the Softbank-Sprint deal does have a break-up fee, to the tune of $600 million (as reported in the WSJ Online and confirmed in the actual deal). But Softbank went one step further than just including a termination fee. Concurrent with the original M&A agreement, Softbank also purchased a $3.1 billion convertible bond from Sprint. The conversion rate implies a price of $5.25 per share. That’s close to 600 million shares that Softbank can convert and sell back to any hostile bidder, capturing the additional value of the hostile tender offer. In the case of Dish’s $7/share bid, that’s roughly a $1 billion pay-off for losing the bidding war…in addition to the $600 million termination fee.

That’s a pretty sweet deal for sour grapes. It also illustrates that there are multiple ways bidders can protect their interests in an M&A deal.

Side note: the WSJ headlines report a potential $4 billion benefit to Softbank if Sprint bolts to Dish, but most of that is a windfall resulting from devaluation of the yen and it’s effect on the cash Softbank had set aside to effect the deal. It’s a nice windfall, but it’s not directly related to the terms of the deal itself.